Les Green on law, philosophy, and some other passions

The Will of the People

In the previous post, I suggested that there is some truth in populism. I proposed that it specifies a certain end for government, namely, that the well being of the people ought to be the ‘supreme law’ (as Cicero put it). A number of correspondents remind me–correctly–that Cicero was not all that keen on the populists of his day. Others write to ask how a liberal like me could possibly endorse such a view (forgetting, I suppose, that Locke chose Cicero’s tag as the epigraph for the Two Treatises).

It is unlikely that any general purpose or aim will suffice to pin down a specific political theory or, if you prefer, ideology. Utilitarians can subscribe to the populist aim, under a certain interpretation of ‘well being’. So can rights-based liberals, under a certain theory about rights and a theory about the division of labour among states. Is this worrying?

I think that when we are trying to understand populism as a possible–and possibly attractive–political view we need to add to its characteristic end at least one other feature, a claim not about proper ends but about legitimate means. Populists think (or should think) that the most fundamental political choices facing a state ought to be subject to the will of the people, in the sense that they should be responsible to the people. Again, this is an ideal, not a description of our current mess. (And that’s another reason that the journalists’ pejorative ‘populism’ is a such poor guide for constitutional theory. The pejorative use just sweeps the messes into one big heap, then tells us to bin the lot.)

But now populism is starting to sound a lot like democracy. Well, it is something like democracy; we might say, populism is democracy for les jusqu’au-boutistes. The point about the proper ends of government applies also to its proper means. A democrat, regardless of how much popular input he favours, is bound to stand firm at one point. It is not for the people to undo or restrict democracy (in the specified form). If, in a free and fair referendum, the people vote by a clear majority to establish a theocracy, then the populist I have in mind will hold that that is how the constitution should run. It is not for the losing minority, or the economic elite, or powerful secular states, to prevent that people from living under the sort of constitution they chose. Of course, opponents of theocracy are still entitled to denounce what the people have chosen, to argue against it, and so forth. Nonetheless, at the end of the day the people are to be sovereign. A people can be sovereign without governing, and they can govern without being sovereign. That is why a commitment to popular sovereignty sits uneasily with a commitment to democracy. Only under certain conditions are they mutually supporting, and those conditions are not guaranteed (and, historically, are not all that common).

I have said that a populist thinks that the most fundamentalpolitical choices should be made by means responsible to the people. This allows for bolt-ons. We need to have a separate argument about whether choices that are morally fundamental –say, policies about abortion or punishment–ought to be subject to popular control, or whether popular sovereignty applies only to choices that are procedurally or institutionally ‘fundamental’ (e.g., voting systems, constitutions and their amendment procedures, etc.). But the need for bolt-ons is not an objection to a theory. Just the contrary: we should be wary of anyone who purports to ‘derive’ everything in political morality–from the ends of government, to the limits of private property, right down to the role of judicial review– from a couple of diaphanous ideas like ‘reason’ or ‘freedom’. We should expect to see different sorts of populism, just as we see different sorts of conservatism, and different sorts of libertarianism. And should expect to come to different views about their cogency, according to our views about the bolt-ons. That is how serious political philosophy works.

The idea that fundamental political choices ought to be subject to the control of people–the very same people whose well being figures in specifying the aim of a populist government–is thus flexible. But it is far from empty. Plato would have hated it for the same reason he hated democracy: what do the untrained ‘people’ know about anything? Bad enough that, say, a bricklayer should get to vote on which experts should determine monetary policy; but a populist is willing to let him vote also on the voting system, and even on constitutional rules! Some liberals will hate it, for they will see that by letting the people shape the constitution we will inevitably be letting them shape, not only what rights we have, but how we determine and enforce what rights we have. And some conservatives will hate it. Like Dicey, they will say that the only ‘will of the people’ the courts can recognize are Acts of Parliament; or that populist politics are likely to be turbulent, and nothing frightens a million pounds as much as uncertainty.

That so many find so much to object to in populism as I’ve defined it is good evidence that is far from being an empty doctrine. How it measures up against its competitors is a matter for later posts.